China's draft law has 'no basic fair-trial protections'

By agency reporter

November 13, 2017

China’s legislature should substantially revise its new draft National Supervision Law to include fair trial protections for corruption suspects, says Human Rights Watch. The draft National Supervision Law does not guarantee detainees access to lawyers or family members, and allows them to be held in a secret location for up to six months.

Once in effect, the law will further strengthen the Chinese Communist Party’s control over its ongoing anti-corruption campaign, one that has been driven by the party disciplinary agency, the Central Commission for Discipline Inspection (CCDI).

“Giving China’s graft-busters the authority to hold people incommunicado for months encourages forced confessions and other well-documented abuses,” said Sophie Richardson, China director of Human Rights Watch.“Mistreating suspects is likely to hinder, rather than help, the purported campaign to fight corruption.”

On 6 November 2017, the National People’s Congress Standing Committee Legislative Affairs Commission released a draft National Supervision Law. The draft law outlines the powers and functions of a new anti-graft agency, the National Supervision Commission, which is slated to start work in March 2018. The commission will consolidate existing graft-fighting powers vested in various government departments. It will be empowered to investigate anyone exercising public authority – including officials, managers in state-owned companies, and public school managers. The commission will be led by the Communist Party and will share space and personnel with the CCDI.

The National Supervision Commission will have a range of investigative powers, including the powers to detain a corruption suspect for investigation under a new mechanism called liuzhi. Liuzhi is designed to replace shuanggui, a secret detention mechanism run by the party for party members. Human Rights Watch has criticized shuanggui’s use of arbitrary detention, solitary confinement, torture, and enforced disappearance, and has called for its abolition. (http://www.ekklesia.co.uk/node/24469)

Liuzhi will, at least on paper, offer some improvements over shuanggui. Under the draft law, liuzhi will be codified and subjected to stricter internal procedures; detentions will have time limits – three months, and, upon approval, another three months; families will be notified within 24 hours; and interrogations will be videotaped.

But these limited measures are unlikely to deter abuses. While interrogators will now be required to videotape the interrogations, they are not obligated to disclose them to the detainees, making it difficult to seek accountability. The requirement that family members be notified comes with the caveat that such notification can be waived if it “impedes investigation.”

Still, liuzhi will afford graft investigators enormous power over detainees, providing no basic fair-trial protections. Liuzhi detainees are not guaranteed access to lawyers or redress mechanisms should they encounter abuses; they will also be held in undisclosed “designated locations,” likely solitary confinement cells. Shuanggui is usually carried out in unofficial facilities, typically rooms in hostels with special features, such as padded walls or a lack of windows, to prevent suicides or escapes. There is also no effective external or independent oversight over the conduct of the commission’s graft investigators.

It is estimated that tens of thousands of people have been subjected to shuanggui every year. Former detainees, lawyers and family have told Human Rights Watch that those held in shuanggui are subjected to prolonged sleep deprivation, being forced into stress positions for extended periods of time, deprivation of water and food, and severe beatings. According to one officer who has carried out shuanggui, the indefinite isolation of the detention – which itself can amount to torture – causes detainees’ minds to “collapse after… three to five days” and “answer everything you ask.” After 'confessing' to corruption, they are typically brought into the criminal justice system, convicted, and sentenced to often lengthy prison terms.

Chinese lawyers and constitutional law scholars have raised concerns about liuzhi as well as questioned if the draft law violates the institutional arrangements as outlined in the Chinese constitution, by adding one top government authority to the existing three institutions that answer to the National People’s Congress.

“Putting a veneer of legality on an extra-legal detention system makes it no less abusive,” Richardson said. “The Chinese government claims that the draft law shows it’s committed to the rule of law, but if that were true it would abolish liuzhi and shuanggui, and investigate and prosecute corruption through a state-run, rights-respecting justice system.”

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